Tuesday, December 24, 2013

Sharia: Constitutional (1). Fiqh: Constitutional (2)

Public discussions of traditional Islamic law, by both supporters and critics, routinely refer to the law as Shari'a. As best I can tell, that is a mistake. Islamic law as it was interpreted by legal scholars and applied in the traditional court system is fiqh. Shari'a is what fiqh would be if the scholars always got it right, something they have never claimed to do. Think of it as law in the mind of God.

The same distinction exists in American constitutional law, even though we confusingly use the same word for both concepts. If a lower level court rules a law unconstitutional, it is making a statement not about the Constitution but about the views of the Supreme Court. Roughly speaking, "this law is unconstitutional" is the prediction that, if the case gets to the Supreme Court, the law will be struck down.

But consider the same question from the standpoint of a Supreme Court justice. His vote is not a prediction of how he and his colleagues will vote, it is a statement about how they should vote. If he ends up in the minority, the implication is not that he is wrong, only that his view failed to prevail. While his vote may, under the principle of stare decisis, be influenced by past votes of past justices, what determines it is his view of what the Constitution says and how it ought to be interpreted.

A constitutional scholar is likely to use "constitutional" in both senses. In some contexts, the question he is interested in is how the Supreme Court can be expected to rule. In others, it is how it ought to rule.

Think of "constitutional" in the Justice's sense as "constitutional (1)," in the lower court's sense as "constitutional (2)." Shari'a in traditional Islamic law corresponds to constitutional (1) in our system. Fiqh corresponds to constitutional (2).

8 Comments:

I think this is right. Since you've been reading Hallaq's books, have you also read his papers on ijtihad? I think his discussions of the various types of mujtahids (absolute mujtahids, 'renewers' (mujaddidun), mujtahids within a school, etc.) present an interesting partial analogy to your discussion here of lower courts vs. the Supreme Court.

Does the lower court judge THINK he's making a statement about the views of the Supreme Court? Doesn't it just think the law is unconstitutional whether or not the Supreme Court agrees (unless he changes his mind later)? That is, he thinks the law violates the letter of the constitution.

As a layperson, when I say "that law is unconstitutional" I'm giving my opinion as if I were the Supreme Court. Sometimes, though, I'll say something like, "that's unconstitutional, even though the Supreme Court won't agree," or "that's not really an abridgment of the Nth amendment, but the Supreme Court will think it is."

Perhaps a constitutional scholar will use "constitutional" only in the "Supreme Court will/did decide" sense, because the scholar is trying not to give his/her own opinion.

Public discussions of Sharia law, at least in the US, tend to focus on the phenomenon of Islamic communities in the US trying to enforce Islamic laws, even where those laws are in conflict with U.S. law.

Unless Sharia law is in conflict with U.S. law while Fiqh law isn't, or vice versa, does it really matter what term people call it by?

One slight difference is that all interpretations are "originalists". The Koran cannot be "interpreted" like the Bible, it can only be understood more or less well. It is after all the direct, and final words of God, not, as the Bible, the words of men, who are inspired by the words of God. This has become more, rather than less strict over time.

During the hey-day of Islam, 900-1050, there were several hundred interpretations of Islam. Islamic scholars at the time worked in the private sector. Then government took over, and by the end of the 13th century there remained only four, the same as today.

Given this, I suspect that Islamic jurisprudence has become less varied over time.

What you are describing are not interpretations of Islam but interpretations of fiqh. Also, fiqh isn't based only on the Koran, which doesn't have all that much in the way of legal rules. It's also largely based on the hadith and the extensive scholarly commentary intended to distinguish genuine from bogus hadith.

I don't know in what sense "government took over" in the 13th century. In theory, law was independent of the state. The point at which that pretty clearly became less true was under the Ottomans, but they did not control anything like all of al-Islam and in the 13th century did not control the core areas.

You can find a more extensive discussion of some of this on my web site, in the chapter on Islamic law in my current book project, and also some in earlier posts here.

In American constitutional law, an opinion by a lower court that a law is unconstitutional is subject to reversal by the Supreme Court. It doesn't follow from this, though, the the lower court's statement is a prediction of what the Supreme Court will decide. If a lower court's opinion is reversed by the Supreme Court, the lower court judge can consistently say, "I think the Supreme Court made a mistake". On your account, he couldn't say this: he would say instead, "My prediction turned out to be wrong."

I think that, under Stare Decisis, the lower court judge is supposed to rule according to past Supreme Court precedent, if it exists and is clear. So your point would only apply to an issue that had not been ruled on in the past, but where one might be able to guess how it would be ruled on if it reached the Supreme Court.

From what I understand, Ulemas, Muslim legal scholars were in private practice until the 11th century and freely researched the texts. Then they gradually became state employees. I will get back to you with more references in case you are interested. My main source is elsewhere at the moment.

Bernard Lewis writes in The Arabs in History, pages 98-99, of the situation before about 1050:

The flourishing commercial life of the time was reflected in its thought and literature, where we find the upright merchant held up as an ideal ethical type. Traditions attributed to the Prophet include such statements as 'In the day of Judgement the honest truthful Muslim merchant will take rank with the martyrs of the faith', 'The truthful merchant will sit under the shadow of the throne of God on the Day of Judgement', 'Merchants are the couriers of the world and the trusted servants of God upon earth'. One Hadith even expresses a rather modern economic theory: 'Only God can fix prices'.

From the 11th century, the Muslim world largely stopped using money and reverted to feudalism.

Schools in the Arab world were private until the 11th century. From the 11th century, government run or government supervised madrasas appeared and took their place with root learning as the main curriculum.

The Arabs made great advances in medicine, but later it came to be replaced by "Prophetic medicine" where illnesses were "cured" according to verses in the Koran.

Muslim science produced nothing note worthy between 1050 and 1500.

Perez Hoodboy's August 2007 article in Physics Today is well worth reading. I can only find it here, outside a paywall,https://groups.google.com/forum/#!topic/progressive-interactions/YFeRsxTRpx8but I can send you the pdf.